Madisha v Motlakwana

• Judge: Van Rooyen AJ
• Judgment Date: 18 February 2009
• Citation: 2009 JDR 0113 (T)
• Docket Number: 30488/06/07
• Hearing Date: 16 February 2009
• Court: Transvaal Provincial Division

Van Rooyen AJ:

[1] This is an application for a declaratory order as to the border between two properties and an interdict to prohibit future likely unlawful conduct in not abiding by the declaratory order. The defendants are required to remove an iron pale which is alleged to be on the property of the Plaintiff and which is said to represent the line of the border between the two properties.

[2] The Plaintiff and Defendants are neighbours in Atteridgeville, a suburb of Pretoria (now Tshwane). The First Defendant is married to the Second Defendant, who is the owner of the

2009 JDR 0113 p2

Van Rooyen AJ

property. First Defendant was joined in this matter as a result of the application for the interdict, which the Court also has to consider.

[3] Broadly, the evidence of Mr Motlakwana amounts to the following: The defendants have lived in Atterdigeville since 1987. At that stage the house, in which they have lived since then, was built. The house was in the open fields. According to Mr Motlakwana the fence was constructed at the time by the builder. The Plaintiff testified that he came to live on the adjoining property in 1994. He found the fence there and noticed that it was skew. Plaintiff built a wall between the properties in 2003, directly next to the fence. In 2004 he broke it down again. The Plaintiff appointed an attorney who measured the property and found that the border, indicated by the pale, was encroaching upon his property. After attempts at settling the matter failed, the Plaintiff hired a surveyor to determine the boundary. The testimony of the surveyor was that there is an encroachment of 0.7 meter onto the stand of the Plaintiff, which amounts to a total area of 18 square meters. The cross-examination by Mr Motlakwane did not, in my view, successfully attack the credibility of the witness.

[4] Mr Motlakwana argued the case for the defendants personally. His main argument is that since they had come to live in Atteridgeville the border was represented by the fence, of which the iron pale is the only remaining part. In their plea it is inter alia stated that the boundaries of their stand were determined by the then Local Authority and have never been altered. In effect the defence is that whatever the official records state, those records do not accord with the factual situation. That Courts are not averse to rectifying official records by establishing what the true position is, has been confirmed by the Supreme Court of...